Federal Judge Noemi Rao, confirmed by party-line Senate vote in 2017 to work for the Trump White House, appointed to the D.C. Circuit Court of Appeals by Mr. Trump (to fill the seat vacated by Kavanaugh, when he was promoted), wrote a clear and learned-sounding opinion granting a rare legal remedy, a writ of mandamus, in this case ordering federal judge Emmett Sullivan to dismiss charges against Mike Flynn without a hearing on the merits of the DOJ’s motion to dismiss.
Writing for the 2-1 majority, Judge Rao set out why the extraordinary legal relief sought by Trump’s first (of four, so far) National Security Advisor, the man who led the “Lock her up!” chants before pleading guilty to charges including lying on his sworn security application about being on the payroll of the Turkish government. Judge Rao explained the legal necessity to immediately dismiss the case against Mike Flynn, without arguments on the merits.
The case involves the Barr Department of Justice seeking to nullify the sworn confession of a confederate of the president. Barr’s DOJ worked in concert with Flynn’s lawyers, who filed a motion in the Court of Appeals to force dismissal of the case pursuant to the DOJ’s unprecedented motion to withdraw criminal charges after guilty pleas. Judge Rao wrote, in granting the unusual remedy of mandamus that this was a not unusual case and that the unusual government request to dismiss a case in which they’d secured guilty pleas must be granted under this unusual set of facts.
As cramped in its legal reasoning as Kavanaugh’s recent 5-4 Supreme Court decision ruling in favor of the petitioning Republican National Committee that Wisconsin citizens had to vote in person if they wanted to cast ballots in an election that could neither be constitutionally postponed nor extended, it is better written. (Kavanaugh, Rao’s predecessor, now has the luxury of never being appealed, so that, rather than a lack of Judge Rao’s seeming legal sophistication, may account for his nonchalance and judicial sloppiness.)
Judge Rao’s argument rests heavily on the purported irreparable harm a hearing prior to dismissal would have on the discretionary powers of the Executive Branch and on the presumption of “regularity” it is entitled to — the presumption that it is acting legally, fairly and without prejudice or favor.
Her argument relies even more heavily on the same fundamental legal principle that Kavanaugh’s Wisconsin voting decision does: we have a one vote majority, so suck it, loser cucks!
I will spare you reading her legal prose. In a nutshell, she finds in this case the extraordinary situation in which no hearing may be held before the judge grants the motion the law says is granted “by his leave.” The reason she gives is that such a hearing would be an unconstitutional usurpation of Executive Branch prerogatives.
(the decision is here — click on the In Re Flynn link or download your own copy)
I don’t necessarily recommend it for non-lawyers, although the dissent is beautifully presented, one former prosecutor said it sings. Well worth reading, and crisply written, skip down to it. I have selected some pertinent sections to give you the gist of both arguments :
Flynn petitioned for a writ of mandamus before this court
pursuant to the All Writs Act,28 U.S.C.§ 1651, seeking three
forms of relief: (1) an order directing the district court to grant
the motion to dismiss; (2) an order vacating the amicus
appointment; and (3) an order reassigning the case to a different
For this court to grant a writ of mandamus, “the right to relief must be ‘clear and indisputable’; there must be ‘no other adequate means to attain the relief’; and ‘the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’” In re Cheney, 544 F.3d 311, 312–13 (D.C. Cir. 2008) (quoting Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004)). Applying these standards, we grant Flynn’s petition in part.
Let us pause for a telltale footnote:
2 See U.S. Dep’t of Justice, Justice Manual § 9-27.200 cmt. (2020)
(“[A]s a matter of fundamental fairness and in the interest of the
efficient administration of justice, no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”).
We note here (all of us) that this DOJ directive refers to “initiating” a prosecution, not dismissing it after the admissible evidence actually results in a guilty plea. In Flynn’s case the defendant has signed a detailed plea deal admitting to numerous criminal offenses, offenses he later sought to plead innocent to in a changed plea. He stood by his guilty plea twice, under oath. In Flynn’s case the DOJ’s after-the-fact motion to dismiss requires actually vacating a sworn statement acknowledging guilt. In granting the extraordinary remedy of a writ of mandamus to dismiss the charges, under these highly unusual circumstances, Judge Rao writes:
Because this is not the unusual case where a more
searching inquiry is justified, and because there is no adequate
remedy for the intrusion on “the Executive’s long-settled
primacy over charging decisions,” Fokker Servs., 818 F.3d at
743, we grant the petition for mandamus in part and order the
district court to grant the government’s Rule 48(a) motion to
dismiss the charges against Flynn.
Fokker, of course. Naturally the judge would cite a case called Fokker, over and over. Fokker, by the way, is not a controlling precedent, it turns out, since the judges in that case made related observations and recommendations (dicta) but no holding that created a binding precedent for the DC Circuit Court. The dissent pithily points out that Judge Rao’s ruling converts dicta (non-binding) to dogma (violations of which traditionally punishable by excommunication and death).
Were Judge Rao and her colleague right to rule in favor of this extraordinary remedy in the Flynn case, which as the judge blandly and authoritatively (2-1, fair is fair) opines is “not the unusual case where a more searching inquiry is justified”? Let’s hear a bit from Robert Wilkins, the dissenting judge on the three judge panel:
WILKINS, Circuit Judge, dissenting in part: It is a great
irony that, in finding the District Court to have exceeded its
jurisdiction, this Court so grievously oversteps its own. This
appears to be the first time that we have issued a writ of
mandamus to compel a district court to rule in a particular
manner on a motion without first giving the lower court a
reasonable opportunity to issue its own ruling; the first time
any court has held that a district court must grant “leave of
court” pursuant to Federal Rule of Criminal Procedure 48(a)
without even holding a hearing on the merits of the motion; and
the first time we have issued the writ even though the petitioner
has an adequate alternative remedy, on the theory that another
party would not have had an adequate alternate remedy if it had
filed a petition as well. Any one of these is sufficient reason to
exercise our discretion to deny the petition; together, they
compel its rejection. I therefore respectfully dissent from the
majority’s grant of the writ.
Mandamus is a “drastic and extraordinary remedy,”
Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004)
(quoting Ex parte Fahey, 332 U.S. 258, 259–60 (1947)), and
its “three threshold requirements are jurisdictional,” such that
the absence of any one compels denial of the writ and dismissal
of the petition for want of jurisdiction, Am. Hosp. Ass’n v.
Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016); see also In re
Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir.
2014) (“[T]hree conditions must be satisfied before a court
grants a writ of mandamus: (1) the mandamus petitioner must
have ‘no other adequate means to attain the relief he desires,’
(2) the mandamus petitioner must show that his right to the
issuance of the writ is ‘clear and indisputable,’ and (3) the
court, ‘in the exercise of its discretion, must be satisfied that
the writ is appropriate under the circumstances.’” (quoting
Cheney, 542 U.S. at 380–81)). In issuing a writ of mandamus
compelling the District Court to immediately grant the Government’s motion to dismiss the information against
Flynn, the majority concludes that each of these prerequisites
is satisfied. The majority is in each respect mistaken.
Judge Wilkins also, persuasively, writes:
In considering whether Flynn’s right to relief is “clear and
indisputable,” it serves to remember that the question at hand
is not whether or under what circumstances a district court may
deny a Rule 48(a) motion, but whether it may give
consideration to such a motion before ruling on it. It should
come as no surprise that, before today, neither we nor any other
Court of Appeals has ever read Rule 48(a)’s “leave of court”
provision to mean that a district court may not even consider
such a motion before giving its “leave.” Cf. United States v.
Ammidown, 497 F.2d 615, 622 (D.C. Cir. 1973) (“[W]e do not
think Rule 48(a) intends the trial court to serve merely as a
rubber stamp for the prosecutor’s decision.”). In fact, some of
our case law clearly points in the opposite direction: “The
requirement of judicial approval entitles the judge to obtain and
evaluate the prosecutor’s reasons.” Id.(emphasis added).
The dissenting judge makes this impossible to refute (but easy to simply ignore, if you are writing for the majority) point about why the extraordinary remedy of forcing a court to dismiss the case (before a hearing) of a man who has already pleaded guilty is not allowable in this case. A writ of mandamus is available only in the rare situation where petitioner has no other legal avenue to attain the legal result petitioner seeks. Here:
The inconvenient reality is that the petitioner— Flynn— has an adequate means, via a traditional appeal, to attain relief should the District Court deny the Government’s Rule 48(a) motion. See In re al-Nashiri,791F.3d 71, 78 (D.C. Cir. 2015) (“Mandamus is inappropriate in the presence of an obvious means of review: direct appeal from final judgment.”); Cheney, 542 U.S. at 380–81 (noting that the requirement of absence of adequate alternative remedies is “designed to ensure that the writ will not be used as a substitute for the regular appeals process”). This fact alone defeats our jurisdiction and requires the Court to dismiss Flynn’s petition for a writ of mandamus.
Judge Wilkins adds:
In issuing the writ compelling the District Court to grant the
pending motion without considering it, the majority shuts its
eyes to the unsettled state of the law on the relevant questions:
the import of Rule 48(a)’s “leave of court” provision, the size
and shape of a district court’s discretion in considering an
unopposed Rule 48(a) motion, and the interplay between the
Executive’s prosecutorial discretion and the Judiciary’s
adjudicative power in these circumstances. Flynn has adequate
means to attain the relief he seeks, and he has pointed to no
authority mandating his preferred outcome here. As such,
Flynn fails to carry his burden, and especially given that the
District Court has yet to rule on the motion to dismiss, the writ
should not issue to compel the District Court to grant the
Judge Wilkins makes another compelling point, also unaddressed by Judge Rao, about Flynn’s attempt to retract a sworn guilty plea:
The majority also concludes that the writ should issue to
compel the vacation of the District Court’s order appointing
amicus (1) to address whether Flynn should be held in criminal
contempt for perjury, and (2) to present arguments in
opposition to the Government’s otherwise-unopposed Rule
48(a) motion. In neither respect has Flynn carried his burden
to establish that his right to relief is “clear and indisputable.”
We should also note the numerous amicus briefs filed on behalf of Mike Flynn’s urgent emergency application to have the trial judge barred from considering anything before dismissing the case against him (see list of big shots who weighed in for Flynn at bottom of this post).
Wilkins continues, regarding Flynn’s possible contempt of court:
“The power to punish for contempts is inherent in all
courts; its existence is essential . . . to the due administration of
justice.” Ex parte Robinson, 86 U.S. 505, 510 (1873); accord
Michaelson v. United States, 266 U.S. 42, 65 (1924) (referring
to this premise as “settled law”). Federal Rule of Criminal
Procedure 42 provides a procedure by which a district court
may appoint an attorney to prosecute contempt, should the
government decline to do so. FED. R.CRIM. P. 42(a)(2). This
Rule reflects the fact that “it is long settled that courts possess
inherent authority to initiate contempt proceedings for
disobedience to their orders, authority which necessarily
encompasses the ability to appoint a private attorney to
prosecute the contempt.” Young v. UnitedStates ex rel. Vuitton
et FilsS.A., 481U.S. 787, 793 (1987). “Moreover, a court has
the power to conduct an independent investigation in order to
determine whether it has been the victim of fraud.” Chambers
v. NASCO, Inc., 501U.S. 32, 44 (1991). Far from establishing
his clear and indisputable right to relief, neither Flynn, nor the
majority in his stead, engages this precedent or forwards any
legal arguments as to why a district court that may undeniably
appoint a private attorney to prosecute contempt lacks the
lesser power to appoint amicus to advise it regarding whether
it ought to do so. Nor does the majority explain why directing the District Court to grant the motion to dismiss renders moot
the District Court’s appointment of amicus to advise it on the
legally separate issue of contempt.
Wilkins reaches the heart of the DOJ’s dodgy legal rationale for suddenly dismissing the case against Flynn as he wraps up his dissent:
The majority opinion effectively transforms the
presumption of regularity into an impenetrable shield. In 2017,
the then-Acting Attorney General told the Vice President that
Flynn’s false statements “posed a potential compromise
situation for Flynn” with the Russians, Gov’t Mot. Dismiss
Crim. Info. Ex. 3 at 8, No. 1:17-cr-232, ECF No. 198-4 (May
7, 2020), and just a few months ago, the prosecution said that
Flynn’s false statements to the FBI “went to the heart” of a
valid counterintelligence inquiry and “were absolutely
material,” Gov’t Surreply Mot. Compel Produc. Brady Mat. at
10–11, No. 1:17-cr-232, ECF No. 132 (Nov. 1,2019). Now, in
a complete reversal, the Government says none of this is true. Gov’t Mot. Dismiss Crim. Info. at 13–16, No. 1:17-cr- 232, ECF No. 198. The Government doubles down by asserting in its motion to dismiss that Flynn’s statements could not have been “material” within the meaning of 18 U.S.C. § 1001 because the FBI had no grounds for any “viable” investigation of Flynn at the time he made those statements, id. at 13, even though that contention appears squarely belied by our precedent, see United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010) (“We . . . hold a statement is material if it
has a natural tendency to influence, or is capable of influencing,
either a discrete decision or any other function of the agency to
which it was addressed.”) (emphasis added); United States v.
Hansen,772 F.2d 940, 949 (D.C.Cir. 1985) (Scalia, J.) (“A lie
influencing the possibility that an investigation might
commence stands in no better posture under § 1001 than a lie
distorting an investigation already in progress.”). This is no
mere about-face; it is more akin to turning around an aircraft
The Government asserted to us that it has no duty to inform
the court in a motion to dismiss pursuant to Rule 48(a) of all of
its reasons for seeking dismissal. Oral Arg. Tr. 33. Today the
majority declares that nevertheless—in spite of the
Government’s abrupt reversal on the facts and the law, and
although the Government declares itself entitled not to be
forthcoming with the District Court—these circumstances
merit no further examination to determine whether there may
be additional reasons for the prosecutor’s actions, and if so, if
any such reasons are impermissible. Under the majority’s
interpretation of Rule 48(a), so long as the defendant consents
to the dismissal, “leave of court” is a dead letter.
The Government may be entitled to “leave of court” under
Rule 48(a) to dismiss the criminal information to which Flynn
pled guilty, but that is not for us, as a Court of Appeals, to
decide in the first instance. Rather, the District Court must be
given a reasonable opportunity to consider and hold a hearing on the Government’s request to ensure that it is not clearly
contrary to the public interest. I therefore dissent.
Of course, as we see over and over, a simple majority decides such cases. As even a litigant as legally unsophisticated as Mr. Trump can easily see, on a three judge panel, two beats one every time!
D.C. District Court Judge Emmet Sullivan, the presiding judge brought to court for emergency intervention by Flynn’s lawyers (supported by a veritable Who’s Who of prominent government Republicans and related “outside groups”) to stop the hearing Sullivan had scheduled to hear evidence before deciding whether to dismiss the case, can appeal this highly unusual partisan ruling (allowing the DOJ to immediately dismiss the case against a presidential favorite, “with prejudice” — “forever”– without a hearing) to the full Appeals Court. In fact, he did so immediately.
Not surprisingly, Flynn’s lawyer’s Hail Mary emergency move to stop a hearing on the motion to dismiss was supported by amicus briefs from, among others, the Solicitor General of the United States and the Attorneys General of Ohio, Alabama, Alaska, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, Montana, Oklahoma, South Carolina, Texas, Utah and West Virginia. Also on the side of petitioner Flynn were former United States Attorney General Edwin Meese III and Conservative Legal Defense and Education Fund and eleven Republican members of the House. Also heard from for petitioner Flynn on immediate, extraordinary court-enforced dismissal of this “not unusual case” were Majority Leader Mitch McConnell and Senators Tom Cotton, Mike Braun, Kevin Cramer, Ted Cruz, Charles E. Grassley, and Rick Scott.
Even if Judge Sullivan had not appealed, the Appeals Court, on its own initiative, can review the case and decide whether the two judges followed the controlling law in ruling as they did for this extraordinary remedy in a “not unusual case”. It is important that the review take place, particularly in light of several other recent highly partisan DOJ irregularities and bold-faced abuses of discretion. Unless Barr recommends a Casper Weinberger-style presidential pardon of Flynn to make the case moot, this matter should wind up in the Supreme Court some time in 2021.
Here is an opinion that contrasts sharply with my own (unlike mine it is “fair and balanced TM”), by someone who may or may not have read Judge Rao’s remarkable ruling and the brilliant dissent. No need to read so much technical material when you know the TRUTH! This is from FOX:
The U.S. Court of Appeals for the District of Columbia Circuit on Wednesday ordered the controversial lower court judge, Emmet Sullivan, to follow the law by dismissing the false statements case wrongfully brought by the original federal prosecutors who were either incompetent or corrupt — maybe both.
As evidence emerged that Gen. Flynn was set up and framed by malevolent actors at the FBI —fired Director James Comey, fired Assistant Director Andrew McCabe and fired counterintelligence agent Peter Strzok — the Department of Justice (DOJ) moved to dismiss charges against Flynn a month ago.
If the retired three-star general can be faulted for anything, he is guilty of being human. Under threats and duress (as well as bad advice from his prior conflicted counsel), Flynn pleaded guilty.
He caved in to the tactics of intimidation, coercion and bullying. He should never have done so. Flynn began to regret it, as evidence of his innocence materialized. He then sought to withdraw his plea. He had the absolute right to do so under the law [although only under certain circumstances — ed.].
Judge Sullivan inexplicably balked. This precipitated a skilled legal effort by Flynn’s new and better attorney, Sidney Powell, to uncover the exculpatory evidence proving that her client should never have been charged with anything at all.
Notes concealed by the FBI and prosecutors showed that Flynn did not lie to bureau agents. Instead, he was the victim of a politicized campaign by Comey, McCabe and Strzok to falsely accuse and wrongfully convict him of a crime he never committed. The bureau never had a legitimate reason to even interview Flynn because he had done nothing wrong and the FBI well knew it.
This is important because whatever Flynn said during his FBI interview was “material” to nothing. In a false statements case (18 U.S.C. 1001), “materiality” is an essential element of the crime. Hence, the new prosecutors in the Flynn case soon realized they could not possibly have won the case. Not only did Flynn tell the truth, according to the only witnesses involved, but his remarks were immaterial to an illegitimate investigation. …
…Again, Sullivan balked. Something was amiss. At this point, it became clear that Sullivan was not a neutral or objective jurist dedicated to following the law. He was a rogue judge with an agenda. His decisions reeked of dead fish…
Judge Sullivan had no authority under the Constitution to usurp the power of a separate branch of government.
about the author:
Gregg Jarrett is a Fox News legal analyst and commentator, and formerly worked as a defense attorney and adjunct law professor. He is the author of the No. 1 New York Times best-selling book “The Russia Hoax: The Illicit Scheme to Clear Hillary Clinton and Frame Donald Trump. ” His latest book is the New York Times bestseller “Witch Hunt: The Story of the Greatest Mass Delusion in American Political History”
 I tried to omit most of the crucial legal citations, for your ease of reading, but the formatting troubles were formidable– just skip over the citations, if you can.
 Naturally, it is now “immaterial” that Flynn was fired by Trump for lying to Mike Pence about contacts with the Russian ambassador during the transition period, that he repeated the same lie to the FBI who gave him numerous chances to correct his lie, that he pleaded guilty to lying as well as being on the payroll of Turkey as he took the National Security job, without disclosing this clear conflict of interest on his sworn security screening application. Under Barr’s new theory: NO MORE LIE!